Citation NR: 9602619
Decision Date: 02/05/96 Archive Date: 02/16/96
DOCKET NO. 94-01 763 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee,
Wisconsin
THE ISSUE
Entitlement to service connection for residuals of a right
kidney injury.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
James A. Pritchett, Associate Counsel
INTRODUCTION
The veteran served on active duty from an 1948 to July 1970.
Service connection for residuals of a right kidney injury was
denied in an unappealed rating action in February 1971. The
veteran was notified of the decision and did not appeal. The
decision became final. By rating decision dated in June 1987
service connection was denied on the basis that no new and
material evidence had been submitted to reopen the claim. The
veteran was notified and did not appeal.
This appeal arises from a June 1992 decision by the
Milwaukee, Wisconsin, Department of Veterans Affairs (VA)
Regional Office (RO) that new and material evidence had not
been submitted to reopen the veteran's claim for service
connection for residuals of a right kidney injury. The Board
of Veterans' Appeals (Board), to the contrary, finds that new
and material evidence has been submitted sufficient to reopen
the veteran's claim. This decision therefore will be based
on a de novo review of the record.
CONTENTIONS OF APPELLANT ON APPEAL
It is contended that the veteran injured his right kidney in
a traffic accident while in active service. It is asserted
that his right kidney is nonfunctional as a result of the
accident.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter,
and for the following reasons and bases, it is the decision
of the Board that that service connection for residuals of a
right kidney injury is warranted
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
RO.
2. The evidence demonstrates that the veteran's right kidney
was injured in service.
3. The veteran’s current right kidney pathology is a
residual of the inservice trauma.
CONCLUSION OF LAW
The veteran's right kidney disability was incurred as a
result of service. 38 U.S.C.A. §§ 1110, 1111, 1131, 5107
(West 1991); 38 C.F.R. § 3.304 (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran's claim is "well grounded" within the meaning of
38 U.S.C.A. § 5107. That is, he has presented a claim which
is plausible, and all relevant facts have been properly
developed. No further assistance to the veteran is required
to comply with the duty to assist the veteran mandated by 38
U.S.C.A. § 5107.
The veteran's service medical records are negative for
evidence of a kidney abnormality prior to April 1952. The
veteran's service medical records indicate that he was in an
automobile accident in April 1952 in which he incurred a left
hemothorax with fracture of two ribs. Also included is a
urology consultation dated in February 1968 which indicates
that an intravenous pyelogram revealed a hypoplastic right
kidney, no further examination was performed. The
consultation did not recommend follow-up treatment. The
report of a consultation dated in March 1969 contains a
diagnosis of hypoplastic or congenitally absent right kidney.
The report of a VA rating examination dated in January 1971
notes a renal scan done in 1970 did not show the presence of
a right kidney. By rating decision dated in February 1971
service connection for a kidney disability was denied on the
basis that absence ofthe right kidney was congenital.
The file contains a note dated in November 1992 from a VA
physician which states that the veteran had been his patient
for several years and that evaluation of the veteran by
computerized tomography (CT) scan and ultrasound revealed
evidence of a shattered right kidney which was probably
minimally functional. The note states that this was
consistent with a traumatic injury the veteran suffered in
1952. The note further states that it was extremely unlikely
that the test results represented a congenital defect of the
kidney.
At his personal hearing in April 1993, the veteran testified
that he was in an automobile accident prior to his active
service but that his kidney was not injured until his
automobile accident in 1952. He stated that he sought
treatment for it every few years from then on. He stated
that the VA physician who was currently treating him stated
that a CT scan and renal ultrasound determined that he had a
shattered right kidney.
An opinion by a board of VA nephrologists dated in May 1993
states that it is impossible to determine if the veteran's
atrophic right kidney is the result of trauma or of a
congenital problem. The opinion then notes that the veteran
was in automobile accidents both prior to and during active
service. The opinion notes that even if the veteran's renal
atrophy were caused by trauma, it would be impossible to
determine which accident was responsible.
The May 1993 opinion by the board of nephrologists indicates
that it is now impossible to tell whether the veteran's right
kidney pathology is the result of injury or a congenital
deformity. The opinion also states that it is impossible to
determine whether the right renal pathology, if related to
trauma, was due to the pre-service injury or the post-service
injury. The Board notes that the veteran testified that he
had not sustained a kidney injury prior to active service.
He also testified that after his inservice accident he began
to have kidney problems. His testimony has not been refuted.
Therefore, balancing the evidence and applying the benefit of
the doubt under 38 U.S.C.A. § 5107(b), the veteran is
entitled to service connection for residuals of an injury to
the right kidney.
ORDER
Service connection for residuals of a right kidney injury is
granted.
WAYNE M. BRAEUER
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on appeal
is appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the agency
of original jurisdiction on or after November 18, 1988.
Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402
(1988). The date which appears on the face of this decision
constitutes the date of mailing and the copy of this decision
which you have received is your notice of the action taken on
your appeal by the Board of Veterans' Appeals.
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